5.2 Matters for consideration by Governor in Council
Matters which require consideration and approval by the Governor in Council include:
- issuing of Commissions;
- certain appointments including Judges, Magistrates, Chief Executives and Senior Executive Service officers, members of some boards and statutory bodies, and Justices of the Peace (see Other Appointments 5.2.2);
- expenditure over the limits prescribed from time to time;
- the fixing of numbers and levels of Senior Executives to be employed in a Department under the Public Service Act 1996;
- Proclamations setting dates for the commencement of legislation;
- Orders in Council relating to borrowings by local governments, statutory bodies; exemptions from stamp duties; town plans; boundaries of local governments; acquisition of land; and declaration of National Parks;
- notices for the resumption of land and easements;
- Administrative Arrangements;
- new and amending subordinate legislation to be made or approved by the Governor in Council;
- loan guarantees; and
- unforeseen expenditure.
This list is not intended to be exhaustive. A large proportion of the legislation enacted by the Queensland Parliament has delegated power to the Governor in Council which is the principal subordinate legislation instrumentality in the State. Each Department must be familiar with its legislation, both principal and subordinate, and matters requiring Governor in Council approval. If there is any uncertainty regarding the necessity for a matter to be submitted to the Governor in Council for approval, advice should be sought from the Executive Council Secretariat in the first instance.
Each Department must be familiar with matters which require Governor in Council approval.
A brief outline of some of the most common matters submitted by Departments to the Governor in Council follows. A detailed overview of the format of Executive Council documents is at Chapter 8 - Executive Council Documents.
A number of Acts require that certain persons should be appointed to office by the Governor by Commission or Letters Patent. Appointments by Letters Patent are restricted to a few office holders, notably Commissioners or Chairpersons of Commissions of Inquiry.
Each Commission should be prepared in the standard format and settled by the Crown Solicitor.
Two copies of the Commission must be signed by the Minister before submission to the Executive Council Secretariat.
A sample Commission is at Appendix 2 (PDF, 3.1 MB).
Appointments under the Public Service Act 1996.
The appointment of Chief Executives and Senior Executives under the Public Service Act 1996 is by the Governor in Council. A sample Minute for the appointment of a Senior Executive is at Appendix 3 (PDF, 3.1 MB) and the transfer of a Senior Executive is at Appendix 4 (PDF, 3.1 MB). It should be noted that appointments of Senior Executives do not take effect from the date of Governor in Council approval but from the date of gazettal for a later date if specified in the gazettal notice. Such appointments cannot be retrospective. Agencies preparing Minutes under the Public Service Act 1996 should consult the Office of the Public Service Merit and Equity.
Appointments to the judiciary and selected quasi-judicial appointments do not appear in the ordinary Schedule of Minutes for Cabinet. These appointments are not submitted for Cabinet's consideration but are counter-initialled by the Premier prior to entry on a Special Schedule of Minutes for Governor in Council consideration.
Other statutory appointments.
Appointments of Justices of the Peace and Chairpersons and Members of the Boards of Statutory Bodies are normally made by the Governor in Council. These appointments take effect from the date of approval by the Governor in Council, unless a later date is stated, and not from the date of approval by Cabinet. Crown Law advice must be obtained as to whether such appointments can be made retrospectively (see 5.2.9 below).
Appointment Minutes must include a short curriculum vitae.
Where an appointment is being proposed as a result of a recruitment and selection process, details of this process should be included in the Explanatory Memorandum to the Minute. Also included in an appointment Executive Council Minute, must be a short curriculum vitae (two pages or less) for each appointee, including re-appointees and transfers under the Public Service Act 1996. This is for the information of the Governor and Executive Councillors.
Remuneration must be reflected in dollar amounts.
Where a new member is being proposed for appointment to an existing board or statutory body, the Explanatory Memorandum accompanying the Minute (see Chapter 8) should indicate whom the person is replacing and the reason for the replacement. Where fees are payable the dollar amount of fees is to be included in the Minute recommendation or schedule, not a Category description from the Department of Industrial Relations' Procedures for the Remuneration of Part-time Chairs and Members of Government Boards, Committees and Statutory Authorities. 5 A sample schedule for a Minute seeking approval of remuneration is at Appendix 5 (PDF, 3.1 MB).
5. This is the reverse of arrangements applying in Cabinet submissions, where the Category generally is provided. This is because the Department of Industrial Relations Categories are Cabinet policy and do not have statutory status, while the various statutory provisions relating to appointments require that remuneration (i.e. not a category of fees) be determined by the Governor in Council.
Ministers are required to raise all proposed appointments, regardless of whether they are significant or not, with the Premier in writing in accordance with section 5.1.7 of the Cabinet Handbook.
Where an appointment is required to be made by gazette notice, a copy of the proposed notice should be included with the relevant Minute.
Irrespective of whether appointing or re-appointing a member(s) to a board, the title on the Minute cover should read AN APPOINTMENT or APPOINTMENTS. A sample Minute recommending an appointment to a statutory body is at Appendix 6 (PDF, 3.1 MB).
Following Governor in Council approval of an appointment to a statutory body or statutory office, a congratulatory letter including a copy of Welcome Aboard: A Guide for Members of Queensland Government Boards, Committees and Statutory Authorities is forwarded by the Premier.
Departments are asked to provide the Executive Council Secretariat with appointees' current addresses, with the lodged Minute, to assist with the congratulatory letter process. Letters of appointment should also be signed by the Minister or the Chief Executive citing the authority for the appointment as the Governor in Council and outlining the role to be performed.
Letters should be sent advising members of their appointment.
Current prescribed expenditure delegations.
Expenditure exceeding the maximum level prescribed for Ministers from time to time requires the approval of the Governor in Council. A sample Minute proposing expenditure is at Appendix 7 (PDF, 3.1 MB).
Governor in Council approval must be sought for contract expenditure items in excess of $3 000 000.
Approval for contract expenditure should be considered in terms of the total cost of a project or major component of a project. In circumstances where the total cost of a project is in excess of a Minister's delegation level but the total includes contracts within the Minister's delegation level, Governor in Council approval must be sought for the total project expenditure. Once Governor in Council approval of the total project expenditure is obtained, it is not necessary for further Governor in Council approval to be sought for contracts within the approved total expenditure.
Where the amount of contract expenditure includes a Goods and Services Tax (GST) component, it is recommended that agencies seek approval for the entire contract amount (i.e. inclusive of GST).
A number of salient issues are outlined below to assist with the preparation of Executive Council Minutes for expenditure. This section should be read in conjunction with Chapter 8 - Executive Council Documents.
Apart from the expenditure delegations made under the Financial Administration and Audit Act 1977, there is no other general legal provision requiring Governor in Council approval of expenditure. Officers drafting expenditure Minutes should consult with the finance section of their agency with respect to audit requirements.
The Executive Council documentation required for an expenditure Minute is the same required for all Executive Council Minutes i.e. a Minute cover outlining the sponsoring Department, title and recommendation, and an Explanatory Memorandum consisting of standard headings. (Note: as Governor in Council approval for expenditure is generally required by the expenditure delegations only, an Act of Parliament should not be referenced on the Minute cover or in the Explanatory Memorandum).
Use of schedules in expenditure Minutes.
As a minimum, the recommendation should include the quantum of the total project amount (inclusive of GST) in respect of which approval is sought and an adequate description of the subject of the proposed expenditure. The use of a Schedule referenced in the recommendation on the Minute cover may be useful in providing a simpler way of presenting relevant information for the consideration of the Executive Council.
The Explanatory Memorandum should include information in relation to the purpose of the expenditure, the tendering process and the tenderer to be awarded the project. If the Minute is seeking approval for expenditure for a number of projects, this detail should be provided for each project.
Information should be provided regarding the proposed funding source, for example, where a special funding allocation has been made or where funding is to be provided from a particular Departmental budget.
Where relevant, reference should also be made to any employment impact, for example, the number of person years of employment the project is expected to generate. For Departments that do not have a specific formula used to calculate employment impact, refer to Treasury's most recent instructions for completing Budget Paper No 3 - Capital Statement. These instructions, which should be available from Departmental finance areas, provide a pro-forma for calculating employment impacts. Otherwise, contact should be made with the Department's Treasury Analyst.
An Executive Council Minute seeking approval for revised expenditure (that is, a level of expenditure that is greater than 10% of an amount previously approved by the Governor in Council - variations of up to 10% of the original approval may be approved by the Minister), requires the same documentation as that mentioned above. The Minute cover should indicate the total amount of expenditure, that is, the sum of the original approval and the additional amount sought.
Revised expenditure Minute requirements.
Additional information required includes a reference to the Executive Council Minute number and date of the original Governor in Council approval, the quantum of the additional expenditure required and the total amount now requiring approval. These additional details are best shown in a Schedule referenced in the Minute recommendation. Reason(s) for the increased amount should be included in the Explanatory Memorandum for the information of the Governor and Executive Councillors. A sample revised expenditure Minute including the Explanatory Memorandum and Schedule is at Appendix 8 (PDF, 3.1 MB).
Allocation of grants.
Governor in Council approval is also sought where an agency grants significant sums of money to another entity for various purposes rather than contracting directly for goods and services. For the allocation or distribution of expenditure through grants, the same delegation levels apply. If the total allocation is in excess of a Minister's delegation level but the total includes allocations within the Minister's delegation level, Governor in Council approval must be sought for the total allocation expenditure. This also applies when the source of expenditure is other than the State Government e.g. Commonwealth funding, given that the State has the ultimate administrative responsibility for making the allocation.
Expenditure in the form of a grant should follow the same format as for an expenditure Minute. The title of the Minute should be EXPENDITURE. The Recommendation should read, for example: "The Council recommends to Her Excellency the Governor that expenditure of $1 200 000 in the form of a grant to ABC Institute Ltd to conduct research into DEF be approved". A sample Expenditure Minute (in the form of a grant) is at Appendix 9 (PDF, 3.1 MB).
Some legislation does not commence until proclaimed. Such proclamations are subordinate legislation. Each Department must ensure that all Proclamations are signed by the Minister prior to submission to the Executive Council Secretariat.
A sample Proclamation is at Appendix 10 (PDF, 3.1 MB).
Proclamations which are subordinate legislation must be drafted by the Office of the Parliamentary Counsel and notified in the Queensland Government Gazette. Other Proclamations must be published in the Queensland Government Gazette in full.
The Office of the Queensland Parliamentary Counsel (OQPC) drafts all subordinate legislation other than exempt subordinate legislation. 6 Where OQPC has drafted an instrument, a copy of the instrument certified by OQPC must be included with the Minute. The title of an amending instrument always includes a number e.g. the number (2) in the title " Corrective Services Amendment Regulation No. (2) 2003". The number must be filled in by the sponsoring agency before the instrument is forwarded to the Executive Council Secretariat. If uncertain as to the number, consult the Executive Council Secretariat before finalising the Minute for the sponsoring Minister's signature.
6. Exempt subordinate legislation is defined by section 2 of the Legislative Standards Act 1992. Exempt subordinate legislation is a statutory rule (other than a regulation) declared to be exempt subordinate legislation by an Act or a Regulation under the Legislative Standards Act 1992.
Office of the Queensland Parliamentary Counsel arranges the gazettal and tabling of subordinate legislation.
The making of subordinate legislation must be notified in the Queensland Government Gazette. The notice must specify the places where copies of the legislation can be obtained (section 47 of the Statutory Instruments Act 1992). OQPC arranges for notification of subordinate legislation and tabling in Parliament if (and only if) it drafts the subordinate legislation. Agencies must ensure that, in relation to exempt subordinate legislation and other statutory instruments, the prescribed notification and tabling requirements are met. Subordinate legislation ceases to have effect notwithstanding Governor in Council approval if it is not tabled in the Legislative Assembly within 14 sitting days of its making.
Significant subordinate legislation must be considered by Cabinet prior to the Governor in Council.
Departments should note that significant subordinate legislation must also be considered by Cabinet prior to being presented to the Governor in Council for approval. (See Section 7.4 of the Cabinet Handbook for what is significant subordinate legislation in this context.)
The need for Compliance Certificates.
All Executive Council Minutes relating to subordinate legislation should include a Compliance Certificate signed by the Chief Executive to indicate that the requirements of the Scrutiny of Legislation Committee in relation to Regulatory Impact Statements have been taken into consideration unless specifically exempted. Subordinate legislation commencing the provisions of primary legislation (section 46 of the Statutory Instruments Act 1992) and Court Rules (section 118B of the Supreme Court Act 1991) are examples of subordinate legislation exempted from the requirements for a Regulatory Impact Statement.
If a Regulatory Impact Statement or Explanatory Notes have been prepared for subordinate legislation, a copy of the statement or notes must be included with the relevant Minute. This also applies to any National Scheme Regulatory Impact Statement prepared in another jurisdiction. If the subordinate legislation was drafted by OQPC, the Regulatory Impact Statement or Explanatory Notes for the subordinate legislation must be formatted by OQPC and bear its stamp evidencing the formatting. This allows OQPC to arrange for their tabling with the subordinate legislation and, in due course, to publish them in the annual volumes of Queensland Subordinate Legislation. If the statement or notes do not bear OQPC's stamp, the progress of the Minute to Executive Council may be delayed.
Where subordinate legislation deals with fees or charges the explanatory memorandum should indicate whether the proposed action represents an increase, decrease or no change to previous structures. Where proposed changes relate to an increase in the Consumer Price Index, this should be noted.
Samples of subordinate legislation are at Appendices 11 (PDF, 3.1 MB) and 12 (PDF, 3.1 MB).
A sample a Compliance Certificate is at Appendix 13 (PDF, 3.1 MB).
The meaning of statutory instruments is defined in section 7 of the Statutory Instruments Act 1992.
Statutory instruments must be settled by the Crown Solicitor.
Statutory instruments, other than subordinate legislation, should be settled by the Crown Solicitor. Any statutory instrument settled by the Crown Solicitor must be certified by the Crown Solicitor and the certified copy included in the Executive Council Minute.
Departments must arrange publication and tabling, where applicable, of statutory instruments not drafted by OPC (see also 7.1 below). All Orders in Council must be either notified or published in the Government Gazette (section 10 of the Statutory Instruments Act 1992).
Where a statutory instrument deals with interests in or over land, the explanatory memorandum should indicate whether Native Title implications have been considered.
A sample statutory instrument is at Appendix 14 (PDF, 3.1 MB).
Generally the Governor in Council will not approve matters retrospectively. However, where the Minister proposes, for a particular reason, that a matter should be approved retrospectively (irrespective of the means in which the retrospective matter is being proposed), the advice of the Crown Solicitor should be obtained regarding the legality of the action. A copy of that advice should be included with the Executive Council Minute and referenced in the Explanatory Memorandum.
The Crown Solicitor's advice must be obtained for proposed retrospective matters other than subordinate legislation.
In general, beneficial provisions contained in a statutory instrument may be approved retrospectively. Beneficial provisions are those which do not operate to the disadvantage of a person (other than the State, a State statutory body or a local government) by decreasing the person's rights or imposing liabilities on the person. Section 34 of the Statutory Instruments Act 1992 provides that a beneficial provision of a statutory instrument may be given retrospective operation if the instrument expressly provides for that operation.
The Crown Solicitor's advice is not necessary where the retrospective matter is contained in subordinate legislation that is drafted by OQPC.
Last reviewed: 1 October, 2009
Last updated: 1 October, 2009
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